9911796707
TMI Blog1951 (10) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... or the years 1944-45 and 1945-46 on the 28th of March, 1945, and the 19th of August, 1946, respectively. The Bank had filed appeals against these orders both of which were decided by the Appellate Assistant Commissioner by his orders dated 25th October, 1946, and 31st December, 1946, respectively. Although the Bank had partially succeeded in these appeals it was not satisfied, and it had filed appeals in both cases before the Allahabad Bench of the Income-tax Tribunal, which then had jurisdiction over the Punjab. These appeals were still pending on the 15th of August, 1947. It may be mentioned that before that date the Bank in addition to removing its head office from Lahore to Delhi had also requested the Income-tax authorities at Lahore to transfer to Delhi the records relating to its income-tax affairs and this was done though it is not clear exactly when. It seems that these appeals, and probably others which had been filed relating to income-tax assessments at Lahore, were sent by the Allahabad Bench to the President's Bench at Bombay, which apparently was of the opinion that the appeals should be heard by the Pakistan Tribunal set up after the partition and a date for hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the two cases was immaterial, as the Department had accepted notice and had been properly represented in the appeals, and that the substantial points raised in the two questions which are first mentioned above did not arise out of the orders of the Tribunal in the appeals, since the points involved therein had never been raised at all or argued. The learned members of the Tribunal were of the opinion that the applications were merely an attempt to wriggle out of the effect of the appellate orders of the Tribunal by invoking want of jurisdiction to hear the appeals on the part of the Tribunal, and that the Department by properly instructing a representative to appear on its behalf and oppose the appeals on the merits, had agreed by its conduct to abide by the decision of the Tribunal. Substantially the contention advanced by Mr. Sikri on behalf of the petitioner is that a point of law to be the subject of a reference to. the High Court under Section 66 need not necessarily be one which has been raised and discussed in the appellate order of the Tribunal, and that fundamental question such as want of jurisdiction is one which must be said to arise out of the order of the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 66 and the argument was raised by the learned Advocate-General representing the Commissioner of Income-tax that a point involved in one of the two questions had not been discussed and dealt with by the Tribunal in its appellate order. Regarding this objection Chagla, C.J., made the following observations:- Now, looking at the plain language of the section apart from any authority, I should have stated that a question of law arose out of the order of the Tribunal if such a question was apparent on the order itself or it could be raised on the facts found by the Tribunal and which were stated in the order. I see no reason to confine the jurisdiction of this Court to such questions of law as have been argued before the Tribunal or are dealt with by the Tribunal. The section does not say so and there is no reason why we should construe the expression 'arising out of such order' in a manner unwarranted by the ordinary grammatical construction of that expression. Even he went on to dissent from a contrary view expressed in some other decisions and to rely on the decision of Beaumont, C.J., and Rangnekar, J., in Vadilal Lallubhai v. Commissioner of Income-tax, Bombay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seems to me that the number of decisions which can be cited in support of the argument that under no circumstances can a point of law arise which has not been discussed in the order in question is rather due to the uncritical acceptance of the dictum of Addison and Sale, JJ., by other High Courts than to any serious attempt at a discussion of the points involved, and in none of the cases cited, although some of them are of recent years, does it appear that the attention of the learned Judges was ever drawn to the decision in. Khemchand Ramdas' s case (supra) which, even if not treated as a conclusive authority on the point, might at least have led to some more careful consideration of the matter. Thus on the whole I am of the opinion that fit cannot be said definitely that under no circumstances can a point of law be said to arise out of an order simply because the point has not been raised and discussed in the order itself. It does not necessarily follow from this, however, that we should accept the present applications and require the Tribunal to state a case and refer the questions formulated by the Commissioner of Income-tax. It is astonishing to me that the Income-tax D ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
